law and practice for architects

Law and Practice for Architects
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BOB-FM.QXD 02/18/2005 10:48 PM Page ii
Law and Practice for
Architects
Bob Greenstreet
Karen Greenstreet
Brian Schermer
AMSTERDAM • BOSTON • HEIDELBERG • LONDON • NEW YORK • OXFORD
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Architectural Press
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First published 2005
Copyright © 2005, Robert Greenstreet, Karen Greenstreet and Brian Schermer.
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Contents
List of AIA documents vii
Preface ix
Chapter 1 The architect and the law 1
Chapter 2 The building industry 15
Chapter 3 The architect in practice 29
Chapter 4 Law and the design phase 47
Chapter 5 Contract formation 61

Chapter 6 The construction phase 83
Chapter 7 Completion 101
Chapter 8 Dispute resolution 113
Glossary of common legal terms 127
Index 129
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List of AIA documents
B141-1997: Standard Form of Agreement between Owner and Architect 35
A310 Bid Bond 72
G715 Supplemental Attachment 73
A312 Performance Bond and Payment Bond 75
G711 Architect’s Field Report 90
G710 Architect’s Supplemental Instructions 91
G701-2001 Change Order 95
G702 Application and Certificate for Payment 96
G706 Contractor’s Affidavit of Payment of Debts and Claims 105
G706A Contractor’s Affidavit of Release of Liens 106
G707 Consent of Surety to Final Payment 107
G704-2000 Certificate of Substantial Completion 108
All forms reproduced by kind permission of The American Institute of Architects, www.aia.org.
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Preface
Many architects cringe when discussing issues related to the law and practice procedures because they
associate these with an almost Pavlovian response to disputes, wrangling with lawyers, and threats to
their livelihood. The authors of this book, however, feel that such a reaction is largely unwarranted. Far
from being a source of threat and fear, knowledge of law and practice provides a welcome measure of
security and certainty.
In everyday practice, the architect spends considerable time carrying out various administrative tasks

and dealing with problems and situations arising from the design and construction of each new building
project. In order to do this effectively, a basic knowledge of all the relevant procedures involved is neces-
sary, coupled with an understanding of the broader legal and professional issues at stake.
Law and Practice for Architects provides a comprehensive, concise, and simplified source of practical
information, giving the reader a basic legal overview of the wider principles affecting the profession, and
concentrating on the more specific procedural aspects of the architect’s duties. In addition, it contains a
series of checklists, diagrams, and standard forms which provide a quick and easy reference source.
Each section of the book culminates with a short commentary on the architect’s responsibilities enti-
tled ‘Practice Overview,’ based on a series of articles published in the architectural journal Progressive
Architecture by Bob Greenstreet. Each is followed by a Question and Answer page, addressing common
problems or issues likely to be encountered at each stage of the design and construction process. Neither
the Practice Overview nor the Q & A sections are intended to provide a specific answer to a problem, as
each practice situation would, in reality, merit its own unique handling. Rather, they are meant to con-
vey an attitude appropriate to successful practice management.
The most recent AIA standard forms for design, construction and construction management have
been referred to extensively throughout the text. Many of the forms reproduced in the book are pub-
lished by the American Institute of Architects. While their use is by no means mandatory, they are use-
ful in providing a consistency of understanding on each project between the various parties, and are
therefore recommended where appropriate.
Law and Practice for Architects offers only an introductory framework of information, as a detailed
analysis of all relevant aspects of the subject could not possibly be crammed into so few pages. Many ele-
ments of law vary from state to state and, in some cases, from city to city, so it is important that readers
use the text as a basic overview of the subject, checking for more detailed information where appropri-
ate. For example, for out-of-state practice it may be prudent to investigate such information as licensing,
codes, lien law, partnership laws, etc., before providing professional services. Similarly, it is not the inten-
tion of the authors to provide a legal service in the publication of this book, but to offer an introduction to
legal and practical matters concerning architecture. Legal assistance is strongly advised where appropriate.
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1

The architect and the law
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The architect and the law
Law and Practice for Architects
●
3
THE LAW
Sources of Law
The United States’ judicial system developed
originally from English common law, and is
aimed at preserving the fabric of society. It is
embodied in:
●
Federal and state constitutions
●
Statutes
●
Common law
●
Regulations of administrative agencies
In addition, equitable doctrines, which allow
for flexibility in decision making, are sometimes
invoked.
Federal and State Constitutions
The US Constitution represents the supreme law
of the nation, laying down rules which bind all
aspects of government. Much of its content,
notably the Bill of Rights, derives from concepts
which emerged through the common law.

The Constitution is the highest source of US law
and neither judge nor legislature may ignore or
contravene its principles. Within the Constitution,
however, the states have authority delegated to
them to regulate public health, safety, and welfare
in the form of building codes and regulations.
In addition, individual states have their own
constitutions which are largely based upon the
national model.
Statutes
Statutes are written laws officially passed by fed-
eral and state legislatures. Federal laws apply
nationally, whereas state laws are only relevant to
the state in which they are passed, and can vary
throughout the country on the same subject (for
example, professional licensure).
Common Law
The basic “rules” of society have emerged through
the common law which demands that judges
decide each new case on the basis of past decisions
of the superior court. The principle of stare decisis
(to stand by past decisions) is not a completely
rigid concept: a judge may distinguish a new case
from its predecessors in certain circumstances,
thereby creating a new precedent. This enables
the common law to grow and adapt according to
the changing values and needs of society.
Where a conflict arises between a common law
decision and a statute, the latter always prevails.
Often an undesirable common law rule is disposed

of by the passing of a statute.
Regulations of Administrative Agencies
Administrative agencies are often empowered to
make and enforce regulations which have the
force of law.
Equity
The concept of equity allows for additional pro-
cedures and remedies to be granted in court pro-
ceedings. It provides a measure of fairness not
always available under rigid statute or common
law. For example, if an owner avoids payment on
the basis of a legitimate contractual technicality,
the architect might claim based on the principle
of unjust enrichment.
Classification of Law
Law pertaining to the practice of architecture can
be classified into four basic categories:
1. Criminal law
2. Civil law
3. Civil rights law
4. Administrative law
Criminal Law
Acts committed against society or the public good
by individuals which are proscribed by federal or
state laws are generally classified as crimes (e.g.,
murder, theft, etc.). Lesser crimes are called mis-
demeanors, whereas more serious offenses are
known as felonies. Some states prohibit profes-
sional licensing for individuals with a criminal
record.

Society
Person
Person
Figure 1.1
Civil Law
Civil law is private law dealing with the rights and
obligations of individuals and corporations in
their dealings with each other. Areas covered
under this category include:
●
Succession
●
Family Law
●
Contract
●
Property
●
To r t
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For the professional design practitioner, the
most relevant branches of civil law are:
a. Contract law
b. Tort
Contract Law This concerns the legally binding
rights and obligations of parties who have made
an agreement for a specific purpose (see page 63).
To r t A tort is literally a “wrong” done by one
individual (or corporation) to another for which a
remedy (e.g., compensation, injunction, etc.) may

be sought in the courts. Examples of specific
torts are:
●
Negligence (see page 6)
●
Trespass (see page 50)
●
Nuisance (see page 50)
●
Defamation (see page 28)
It is possible for a case to fall under both con-
tract and tort simultaneously (for example, where
a negligent act results in a breach of contract). In
these circumstances, it is often easier to sue on the
contract rather than attempt to prove the tort.
Civil Rights Law
Civil rights legislation, such as the Americans
with Disabilities Act, protects individuals against
discrimination based on physical disability.
Specific design guidelines and regulations ensure
access to public accommodation. Federal fair
housing statutes and some state legislation ensure
the accessibility to, and adaptability of, certain
types of housing.
Administrative Law
Legislation at the federal, state and local levels
establishes and enhances building codes and
regulations. These are designed to protect the
health, safety, and welfare of the public. Architects
may be held liable for their violation, which may

possibly affect their licenses.
THE COURTS
The United States has two hierarchies of courts:
1. Federal
2. State
At the head of both hierarchies is the US
Supreme Court.
Federal Courts
Cases are heard in federal courts when a federal
question is involved or when a dispute arises
between parties from different states. In many
cases federal jurisdiction is concurrent with state
jurisdiction, but in certain matters the federal
courts have exclusive authority. Examples include:
●
Patent and copyright
●
Actions in which the US Government is a party
●
Cases involving federal criminal statutes
Federal trial courts are located throughout the
United States. Each case begins at the district
level, with the possibility of appeal to the relevant
Court of Appeals and finally to the US Supreme
Court. Criminal and civil matters are heard in all
federal courts, although certain specialized courts
exist for specific issues (examples include the Court
of Claims, Court of Customs and Patent Appeals).
State Courts
State courts are limited in jurisdiction according

to their location and the type of case involved.
Generally, each state has at least two levels of trial
courts. Criminal matters are heard at all levels,
but frequently the lowest state courts are only
authorized to deal with misdemeanors.
Similarly, civil cases are heard throughout the
system, but the lower courts are restricted in their
jurisdiction, often on the basis of the financial
amount claimed.
4
●
Law and Practice for Architects
The architect and the law
PersonPerson
Society
Tort
Family
Succession
Employment
Property
Contract
Figure 1.2
US Supreme Court
US Court of Appeals
US District Courts
Figure 1.3
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limit for small claims varies from state to state
(but $5,000 is a common figure). In some states,
professional representation is prohibited in these

courts.
The United States Supreme Court
The US Supreme Court has original jurisdiction
in cases involving disputes between states. In
addition, it is the final court of appeal, but it will
only hear cases it considers to be significant and
which have originated in the state or federal courts.
Out-of-State Claims
Owing to federal due process requirements, some
matters may be complicated if the parties are resi-
dent in different states. Many states have enacted
long-arm statutes to enable suits to be brought
against defendants resident in other states.
Standard of Proof
When a matter is decided in the courts, allega-
tions must be proved. The standard of proof in
criminal proceedings is very high: the prosecution
must prove its case against the accused “beyond a
reasonable doubt.” In civil matters, parties need
only prove their allegations to the degree that
the court will accept them on a “balance of
probabilities.”
Other methods are available for the resolution
of disputes outside the courts:
●
Arbitration (see page 116)
●
Mediation (see page 122)
●
Administrative boards, agencies, and commis-

sions (quasi-judicial forums which tend to be
less formal than the regular courts and special-
ized in nature).
In most legal matters affecting design practice,
it is advisable to obtain professional legal advice.
Selection of an attorney may be facilitated by con-
tacting a local or state bar association which, in
many areas, operate convenient lawyer referral
services free of charge.
THE ARCHITECT’S LIABILITY
The architect’s legal obligations and responsibil-
ities are owed to a variety of parties, and are gov-
erned by statutes, administrative regulations, and
common law.
However, the majority of suits against archi-
tects are concerned with:
1. Breach of contract
2. Negligence
The architect and the law
Law and Practice for Architects
●
5
US Supreme Court
State Supreme Court
State Court of Appeals
District Court
(County, Circuit,
Superior, etc.)
Lower Courts
(City, Municipal,

Small Claims, etc.)
Figure 1.4
Go to Small
Claims Court
The hearing
The award
Pay fee
Court gives trial
date and serves
summons
If yes, fill out
complaint form
Is amount below
limit?
Figure 1.5
State court systems generally have two levels of
appeals courts: intermediate courts of appeals and
the State Supreme Courts. The final court of
appeal is the US Supreme Court.
Small Claims Court
In many states, simple procedures have been
developed for individuals wishing to sue for small
amounts which would not be financially practi-
cable in the regular courts system. The financial
BOB-CH01.QXD 02/18/2005 10:39 PM Page 5
Breach of Contract
The architect enters into a contractual relationship
with the owner to perform specific services (see
page 36). An implied agreement is made by the
architect to carry out the required work to the stan-

dards expected of the profession. Failure to meet
these standards, which cause extra expense or
delays for the owner, may result in a claim for
damages against the architect on the grounds of
breach of contract.
Negligence
Separate from any contractual obligations which
may have been agreed upon, a duty or standard of
care under the law of tort may exist (see page 4).
If a person fails in this duty, a negligence suit
could succeed. So the architect could be liable for
the consequences arising from negligent behavior
even in the absence of a contractual relationship.
The extent to which any party may be held
liable to others in tort depends upon their specific
duty or standard of care. In contractual situations,
the obligations of both parties are usually clearly
defined, but in tort it is often difficult to deter-
mine the extent or even the existence of a duty of
care. However, some duties of care have been
defined by case law and/or statute. Two of particu-
lar concern to the architect are:
●
Strict liability
●
Vicarious liability
Strict Liability
In certain cases, liability may exist independently
of wrongful intent or negligence. This concept is
best illustrated by the English case of Rylands v.

Fletcher (1868), in which water from a reservoir
flooded a mineshaft on neighboring land and led
to a successful claim for damages, although no
negligence on the part of the reservoir owner was
proved. The decision against the owner was made
on the basis that he had kept on his land “some-
thing likely to do mischief” and that it had subse-
quently “escaped.” This made him automatically,
or strictly, liable for the consequences.
The concept of strict liability has relevance to
practice, for example, in the specification of ma-
terials, where the architect may be held liable for
requiring new products that subsequently fail (see
page 60).
Vicarious Liability
In some circumstances, one party is responsible
for the negligent acts of another without necessarily
contributing to the negligence. This is referred to
as “vicarious liability” and a common example is
the employer’s responsibility for the acts of
employees in the course of their work. A related
example is the architect’s liability for the defective
work of consultants (see page 21).
In all cases concerning claims based on negli-
gent behavior, certain conditions must be proved
by the plaintiff if the claim is to be successful:
a. That a duty of care was owed by the defendant
to the plaintiff at the time of the incident com-
plained of
b. That there was a breach of contract

c. That the plaintiff suffered loss or damage as a
result of the breach
6
●
Law and Practice for Architects
The architect and the law
Owner
Employees
Others
(Contractor, etc.)
Architect
State/federal
government
The public
Statutory
Contractual
Tortious
Professional
Figure 1.6
BOB-CH01.QXD 02/18/2005 10:39 PM Page 6
Standard of Care
In all cases, it is the “reasonable standard of care”
established by common law against which a
defendant’s performance is matched and judged.
In the case of the architect, the standard is consid-
ered to be the average standard of skill and care of
those of ordinary competence in the architectural
profession.
The Practice Overview on page 10 will give an
indication of the extent to which an architect may

be held liable for negligent acts, and also help to
highlight the areas which merit particular care and
attention. It should be noted that the architect’s lia-
bility in tort is subject to periodic change as a result
of changes in the law and, therefore, it is necessary
to be constantly aware of new developments.
Criminal Liability
In certain limited cases, individual state law may
impose criminal liability upon the architect (for
example, if death results from the violation of a
compulsory building regulation which expressly
states that such a situation gives rise to a charge of
manslaughter).
SAFEGUARDS AND REMEDIES
The law can be seen as a complex web of rules and
procedures that enable and constrain the actions
of individuals and groups. Breaking the rules,
whether intentionally or not, might lead to the
implementation of prescribed punitive or com-
pensatory measures.
In the construction field, a number of precau-
tions and remedies are available to prevent or
allow for certain contingencies. The most impor-
tant of these are shown in Figure 1.7.
Insurance
Contracts of insurance may be entered into by the
architect, the contractor, the subcontractor, and the
owner to protect their respective interests. Under
the AIA Document A201-1997 General Conditions
(Article 11), provisions are made for owners and

contractors to provide their respective insurance
requirements with regard to property and safety and,
optionally, project management liability.
Bonds
These fulfill a similar function to insurance: they
enable an owner to claim relief from the surety
who underwrites the contractor in the event
of the latter’s noncompliance with the contract
requirements. Types of bond include performance
bonds, bid bonds, and payment bonds (see
page 74).
Warranties
These are assurances given by parties in respect of
their goods and/or services (e.g., roofing) which
The architect and the law
Law and Practice for Architects
●
7
Insurance
Bonds
Warranties
Retention
Indemnity
Disruptive event
Waiver
Liquidated damages
Liens
Normal progress
Figure 1.7
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usually last for a stated period of time and are
legally enforceable.
Retention
Before each progress payment is made during the
construction phase, an agreed percentage will
sometimes be retained by the owner to ensure the
contractor’s continued performance until the
completion of the work, when the accumulated
sum is released. Though a prudent precaution for
owners, retentions are unpopular with contractors
and, in recent years, retained amounts have
tended to be increasingly lower.
Variations of the procedure include retaining a
percentage for the first 50 percent of the work only,
after which the retainage, with the consent of
any surety, may be reduced or discontinued.
Alternatively, an agreed percentage may be retained
upon the first 50 percent on each line item of the
work, enabling subcontractors to benefit from early
release. Some parties may agree to invest the
retainage in order to accrue interest payable to the
contractor upon successful completion of the work.
Indemnity
One party may secure or “indemnify” another
against liability for loss or damage resulting from
certain circumstances (e.g., AIA A201, Article
3.18). Indemnity may be implied by events, but,
in the construction industry, it is generally con-
sidered good practice to express it in a written
contract. Legal actions against architects are fre-

quently based on differing interpretations of
implied indemnity.
Waiver
A waiver indicates the giving up by one party of
rights which may prevail over others (for example,
in some instances, the acceptance of payment
may constitute the waiver of certain claims
against the payer). Waiver of some rights is
restricted by individual state laws (such as waiver
of lien: see below).
Liquidated Damages
These represent a formula specified by the con-
tract documents which provides an agreed method
of assessing damages, arising from late completion
(e.g., $x per day, to be paid by the contractor to
the owner for every day by which the agreed com-
pletion date is exceeded: see page 92).
Liens
In cases where goods and/or services have been pro-
vided, the supplier may be able to secure a private
mechanic’s lien or “hold” upon the recipient’s
property to ensure payment of outstanding fees.
The applicability of lien laws varies from state to
state, particularly with regard to professional ser-
vices. A lien effectively encumbers the title of the
property and may be released after satisfactory
settlement of the debt.
Some states allow the architect to impose a lien
for design work and administering the contract,
whereas other states only allow a lien for work

done by the architect on site. A few states do not
permit the architect any liens at all. In view of these
considerable variations, individual state lien laws
should be carefully noted before attempting to
make use of this remedy.
Claims: Settle or Defend
If a claim is made upon the basis that legal obliga-
tions have not been fulfilled, the party so charged
may admit responsibility and settle the claim by
agreed damages or other appropriate means of
compensation. Alternatively, the claim may be
denied, in which case it is likely that the dispute
will be resolved either by litigation (through the
civil court system), arbitration (see page 116) or
mediation (see page 122).
Shared Liability
It is possible that more than one party will be
cited in a tort action on the basis that they share
responsibility for the act or omission complained
of. In these circumstances, the cited parties may
become joint tortfeasors.
Time Limits
Lapse of time may affect the validity of a civil court
action, and individual states have promulgated limi-
tation statutes. These vary, not only as to the time
limit for bringing an action, but also as to the com-
mencement of the limitation period (see page 109).
INSURANCE
A contract of insurance is created when one party
undertakes to make payments for the benefit of

another if specified events should occur. The con-
ditions upon which such a payment would be
made are usually described in detail in the policy.
The consideration (see page 63) necessary to vali-
date the insurance contract is called the premium.
Types of Insurance
The most important types of insurance relating to
the construction process are:
1. Professional liability
2. Public liability
3. Construction contract
8
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Law and Practice for Architects
The architect and the law
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Professional Liability
In the light of current statistics, which indicate a
significant number of negligence suits against the
architectural profession each year (see page 10),
liability insurance is a valuable means of provid-
ing financial protection. However, there is no
legal requirement to insure, and some architects
prefer to risk the consequences and save the high
cost of premiums. Some clients, however, may
require proof of insurance as a prerequisite to
employment.
Professional liability insurance (often referred
to as E & O, or errors and omissions) varies from
company to company both in coverage and con-

ditions, and great care should be taken in policy
selection. In particular, the time limitation on
claims under the policy should be checked (to dis-
cover whether the policy covers errors made prior
to the policy period, which only become apparent
during the policy period). Joint ventures (see page
19) are not covered automatically by professional
liability policies, and at the outset of a joint ven-
ture agreement the architect should contact the
insurer to request the necessary coverage.
Even the most careful and experienced archi-
tect should consider the security afforded by pro-
fessional liability insurance, particularly because:
a. even if not negligent, the architect must still
finance the defense of claims, unless protected
by a suitable policy;
b. the architect is vicariously liable for the errors
and omissions of employees; many professional
liability policies provide coverage against this
contingency.
Public Liability
Most architects, whether or not insured under a
professional liability policy, carry a comprehensive
general liability policy to protect against claims
involving injury to persons or damage to property
in connection with the architect’s business or
premises. These policies often exclude the risks
specifically covered by professional liability policies.
In addition, the architect in practice may require:
Employee-related insurance:

●
Workers’ compensation
●
Disability
●
Medical
●
Retirement
●
Death/dismemberment
●
Group life
Office-related insurance:
●
Building
●
Building contents
●
Documents
●
Business interruption
●
Criminal loss
●
Motor vehicles
Construction Contract Insurance
In most building contracts (e.g., Article 11 of AIA
A201), both parties are required to insure against
contingencies relating to personal injury and
property damage resulting from operations on site

and, optionally, project management protective
liability.
Points to Remember
Advice by the architect to the owner on matters of
insurance should be avoided and may be specifi-
cally prohibited in some professional liability
policies. Similarly, many types of policy become
voidable if the insured fails to follow instructions
prohibiting admission of liability. Policies should be
read carefully to avoid potentially expensive errors.
Contracts of insurance are said to be of “the
utmost good faith” (uberrimae fidei). This means
that all material facts which might affect the
insurer’s willingness to accept the risk must be dis-
closed. Failure to disclose may render the contract
voidable (see page 63).
Insurers should be notified immediately of all
events which may affect the policy (e.g., changes
in personnel).
Regularly check that the amounts of coverage
are adequate, bearing in mind inflation, new
acquisitions, etc. Keep all policies in a safe place.
Ensure that renewal dates and premium payment
dates are carefully noted so that policies do not
lapse through inadvertence. Never take insurance
cover for granted. If in doubt as to whether a risk is
covered, check with the insurers promptly and ask
for confirmation of specific coverage in writing.
Although personally unconnected with
construction-related insurance policies, the archi-

tect should ensure that evidence of insurance
required from the contractor has been approved
by the owner prior to any certifications for
payments.
The architect and the law
Law and Practice for Architects
●
9
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Law and Practice for Architects
The architect and the law
LEGAL LIABILITY IN PERSPECTIVE
Legal liability has been a long-standing concern for architects, but just how
serious an issue is it for contemporary practice? A brief historical overview may
help to bring perspective to both the extent of the problems faced by the pro-
fession and the nature of the risks involved.
During the 1970s and 1980s, it was not uncommon to hear that over one-third
of practicing architects were likely to be sued each year.
1
Much of that infor-
mation, however, tended to concentrate on why the situation had developed
without too much attention being paid to what the threat was. In the absence
of any reliable database clarifying and quantifying the nature of legal liability,
it remained largely undefined and, as such, was all the more disturbing by its
vagueness.
Today, liability is still prominent as a focus, although much has been achieved
to both understand and alleviate the threat.
2

During the 1980s, significant
strides were made in dealing with the types and sources of liability claims.
First, it appears that the early estimates of the incidence of legal action were
relatively accurate. The AIA reports that in 1978, thirty-five claims per one hun-
dred insured firms were reported by architects and that by 1984, this figure had
risen to forty-four.
3
These figures, of course, do not take into consideration
action taken against uninsured architects or claims that were settled without
recourse to insurers. Fortunately, these alarming increases subsided throughout
the 1990s and are now around twenty claims per hundred. Second, informa-
tion concerning the nature of architects’ liability has provided a clearer indi-
cation of the characteristics of each lawsuit, and has helped to identify the
areas of greatest concern. Perhaps most interesting is the high proportion of
claims generated by alleged errors in the design phase. Assumptions that the
majority of cases arise from construction-related problems are at variance with
a number of sources. For example, the AIA has estimated that 78 percent of
property damage suits blame errors in the design and/or contract documents
for building failure. A study undertaken in Colorado also found that the design
phase was the major source of litigation:
The projects sampled in this study experienced an overall additive claim rate
of 6% (i.e., 6 cents on the dollar) and, furthermore, 72% of these increases
were due to design error or owner initiated changes. The more volatile issues
so prevalent in the literature (delay, differing site conditions, maladministra-
tion, etc.) account for only 28% of the claims.
4
The combined findings of these sources tend to suggest that architects seeking
guidance on litigation-free practice should pay more attention to aspects of
design than may otherwise have been considered necessary.
In addition to this finding, the information highlights the danger areas where

architects typically become involved. The cases indicate an expansion in lia-
bility over time not simply in the number of cases involving architects each
year but in both the range of duties expected to be fulfilled and in the height-
ened expectation of the architect’s performance. Areas of contention that
have become more prominent include third-party claims, cost estimates,
responsibility for shop drawings, and even slander, although perhaps the two
areas that stand out most clearly both in the number of cases involved and in
their serious implications to the profession are the limitation of liability and
PRACTICE OVERVIEW
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implied warranties. In the first, cases reported throughout the United States
5
have involved statutes of limitation and repose, which have been interpreted
in some states to render the architect accountable for errors for a virtually lim-
itless period of time. Even death appears to be no protection against these
claims. In one of the more extreme cases, the decision to allow the liability
period to commence when the fault was discovered (and not at an end of the
construction period, as was generally held in the past) resulted in a claim
against the estate of a deceased architect, the residue of which was providing
security for his widow.
6
Fortunately, many states have sought to limit the poten-
tial of never-ending liability through the enactment of “long-stop” statutes (a
longer period of time during which claims may be brought but starting on a
specified date).
The question of warranties, or the degree to which architects should be

expected to guarantee their work, also raises some concerns. Strict, or auto-
matic, liability has yet to be completely successful in arguments against archi-
tects in the courts. Nevertheless, decisions in the field of product liability have
been used to suggest that complete building elements, such as roofs, are in
fact products, and as such should render their designer strictly liable for their
performance. These expansions of the architect’s duty, in this case to a point
where no fault needs to be proven to attach liability,is reflected in a number of
cases, and suggests that the difference between a warranty and satisfactory
performance is becoming less apparent. Two cases are illustrative of the high
standards expected of the architect. Both seem ridiculous in their claims, and
in fact both were decided in favor of the architects (who, of course, still had to
pay legal fees and may have lost their deductibles).
The first case, brought against an architectural firm for negligent design of a
prison facility, was instigated by the family of a prisoner who had committed
suicide in his cell. The plaintiffs claimed that the architects should have
designed the cells in such a way as to preclude the likelihood of self-inflicted
damage. In the second case,
7
a zoo employee was injured while feeding an
elephant, and sued the architect for failure to design the cage properly.
Both cases, although seemingly frivolous, were considered to be sufficiently
substantial to make an adequate case against the architects’ failure to exer-
cise reasonable care in the designs. Although these cases failed,similar ones in
the past, which at the time seemed unlikely to succeed, were successfully
brought against the architects, increasing the standard of care for the profes-
sion as a whole. Such cases tend to highlight the boundaries of “safe” practice
for the present, while indicating new areas of concern for the future and bring-
ing the concept of implied warranty closer to reality.
Given the high level of legal liability, what has the impact been on the pro-
fession in real terms? Apart from general anxiety engendered by involvement

in legal action and potential loss of reputation, the most dramatic,quantifiable
impact can be calculated in insurance rates. Although it is a relatively new
phenomenon (errors and omissions insurance became available in the
United States only in 1956, although policies were drafted by Lloyd’s of London
soon after World War II), insurance costs have risen to the point where an
annual premium has accounted for as much as 4 percent of the gross income
of a practice, second only to payroll as a practice expense.
It has been suggested that at least part of the increased cost should be
passed on to the client. In a highly competitive and expanding profession,
however, firms may not want to risk losing work by increasing their fees. The
result may lead to lower wages and reduced profit.
Is the current liability situation a serious problem for the practicing architect?
There are some signs of encouragement and hope. For example, national
insurance figures suggest that more than half of claims are settled without
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The architect and the law
payment to the plaintiff, and that in two-thirds of the cases, the architects are
victorious in court.
In addition to these figures, the increased understanding of the liability threat
has raised the consciousness of the profession as a whole. This has led to the
proliferation of guidance and warnings in the form of books, newsletters, arti-
cles, and workshop seminars, which are directed towards the self-protection of
firms and the individual practitioner through understanding of the dangers
and pitfalls involved in practice, and a commensurate lessening of malprac-
tice claims.
Perhaps more significantly, liability has become a major issue at the profes-
sional level, and initiatives for reform in state legislation regarding liability, frivo-

lous claims and tort has made some progress.
In conclusion, legal liability continues to be a sobering reality for the archi-
tect, although it is encouraging to see that the threat is now more clearly per-
ceived and understood. In addition,action at both the individual practice and
institutional levels has led to a more stable and secure future for the profession.
References
1. New York Times, 12 February 1978.
2. Dickmann, J.E., “Construction Claims—Frequency and Severity,” Journal of
Construction Engineering and Management 111, no. 1, March 1985 (a
Colorado study), and Greenstreet, R., Legal Impacts upon the Profession of
Architecture: The Liability of the Architect in Wisconsin, Center for Architectural
and Urban Planning Research, University of Wisconsin-Milwaukee, 1985.
3. AIA Memo Newsletter of the American Institute of Architects, September
1985.
4. Dickmann,“Construction Claims.”
5. Greenstreet, R., “The Limitation of Liability,” The Wisconsin Architect, May
1985, 5.
6. Cecil, R.,“Writing your Will to Defend your Estate from Eternal Liability,” Royal
Institute of British Architects Journal, December 1982.
7. LaBombarbe v. Phillips Swager Associates, 474 N.E. 2d 9 42 (Ill.App.1985).
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Liability insurance can be very expensive
and a number of practices I know opt not
to carry a policy. Is this a wise idea?
Errors and omissions insurance can be expen-
sive and has in the past cost as much as 4 per-

cent of gross, an expense second only to
payroll. While premiums depend upon the
“hardness”of the insurance market,they have
risen in recent years and some smaller prac-
tices have elected to “go bare.” This strategy,
which is risky, may be accompanied by the
building of a “disaster” fund, essentially an
investment of the premium amount in an
interest-bearing account that may be used in
the event of legal action. The advantages
include a healthy saving of the accumulated
premiums (if the practice remains litigation free)
and a potentially lowered claims profile—an
uninsured architect is probably less of a target,
after all. The disadvantages are financial
trauma if legal action occurs before an ade-
quate pool can be saved and the likelihood of
fewer clients, because many will require insur-
ance coverage as a prerequisite for employ-
ment on anything but the smallest projects.
While insurance is not a universal panacea
for protecting the architect against claims—
there is usually a deductible and a limit to
coverage—some of the national carriers pro-
vide a useful and often necessary component
of successful practice and may offer extensive
information, education, and training that can
limit claims through improved practice.
Question & Answer
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